Pushpendra Singh Bhati, J. - (1.) Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. against the order dated 18.08.2011 passed by learned Chief Judicial Magistrate (Metro) Jodhpur in Criminal Original Case No. 715/2011 now this case is transferred to ACJM (Metro) No. 1, Jodhpur which is registered at Cr. Case No. 864/2012.
(2.) At the outset, learned counsel for the petitioner states that the proceedings under the current law was not permissible as the Food Safety and Standard Act, 2006 came into force on 28.03.2008.
(3.) Learned counsel for the petitioner has referred to the judgment of Pepsico India Holdings (Pvt.) Ltd. & Anr. vs. State of U.P. & Ors. Delivered by Hon'ble Allahabad High Court (Writ Petition No. 8254/2010 decided on 08.09.2010), relevant portion shown by the petitioner, reads as under : - "44. In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments advanced by the petitioner's Counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29.07.2010, the authorities can take action only under the FSSA as it postulates an overriding effects over all other food related laws including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under the FSSA after 29.07.2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against all alleged offence of food adulteration. It is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the FSSA and, therefore, the police have no authority or jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and sending them to Food Analyst for analysis. The Designated Officer, after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. Therefore, invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned Government order is wholly unjustified and non est. furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction.";